76 F. 582 | S.D.N.Y. | 1896
The respondent, the owner of the British steamship Portuguese Prince, is sued in the above libels for damages to two lots of wool in bales shipped on board at, Pernambuco, arising from contact of the bales with sugar drainage upon the voyage to New York, where she arrived on March 30, 1895.
The bales of wool were stowed on end in the No. 1 (forward) compartment of the ’tween decks; and wet Pernambuco sugar, from which there is always some drainage, was stowed on the same deck, next aft of the wool, and separated from it by a tem
The bill of lading contains numerous exceptions of liability, including “damage by stowage, leakage, &c., though caused by the negligence of the master,” &c. It also provides that the contract shall be governed by the law of the flag (English); and it is admitted that by the English law such exceptions are valid. The respondent relies on these exceptions of the bill of lading, and upon the United States Harter Act (Act Feb. 13, 1893 ; 27 Stat. 445; 2 Supp. Rev. St. 81, § 3).
I am of opinion that the exemption from liability for damages arising through error or fault “in the management of the vessel,” does not extend to a case like the present, though the question has caused me no little embarrassment. The primary cause of the damage was negligence and inattention in the loading or stowage of the cargo, either regarded as a whole, or as respects the juxtaposition of wet sugar and wool bales placed far forward. The wool should not have been stowed forward of the wet sugar unless care was taken in the other loading, and in all subsequent changes in the loading, to see that the ship should not get down by the head. There was no fault or defect in the vessel herself. She was constructed in the usual way and was sufficient. But-on sailing from Para she was a little down by the head, through inattention during the changes in the loading to the effect these changes made in the trim of the ship and in the flow of the sugar drainage. She was not down by the head more than frequently happens. It in no way affected her sea-going qualities; nor did the vessel herself cause any damage to the wool. The damage was caused by the drainage of the wet sugar alone. So that no question of the unseaworlhiness of the ship arises. The ship herself was as seaworthy when she left Para as when she sailed from Pernambuco. The negligence consisted in stowing the wool far forward without taking care subsequently that no changes of loading should bring the ship down by the head. I must, therefore, regard the question as solely a question of negligence in the stowage and disposition of cargo, and of damage consequent thereon, though brought about by the effect of these negligent changes in loading on the trim of the ship.
So in the recent case of The Glenochil [1896], Prob. Div. 10, where at the close of the voyage, and before the cargo bad been delivered, it was found necessary to fill the ballast tanks with water in order to stiffen the ship; but on the voyage the sounding pipe and casing bad become cracked and broken, so that in filling the tanks the water escaped through the breaks and damaged the cargo; the failure to examine the pipes before turning on the water was found to be negligence, but within the Harter Act, because the negligent acts were done with the ship’s appliances and for the ship’s safety, and hence were a part of “the management of the ship.”
“The negligence,” says President Jeune, “consisted in the mismanagement of part of the appliances of the ship; a mismanagement which arose because it was intended to do something for the benefit of the ship, viz., to stiffen her,—the necessity for stiffening arising because part of the cargo bad been taken out of her. It was further considered that the Harter Act is designed to “prevent exemptions in the case of direct want of care in respect to the cargo, and to permit exemption in respect to the faults primarily connected with the navigation or with the management of the vessel, and not with the cargo.”
In the same case, Sir Gorrell Barnes observes that it was a fault in the management of the vessel in doing something necessary for the safety of the ship herself; that in the first and third sections of the Harter Act “there will be found a strong and marked contrast in the provisions which deal with the care of the cargo, and those which deal with the management of the ship herself; and that where the act done is done for the safety 'of the ship herself, and not primarily
On the other hand, in the case of The Ferro [1893] Prob. Div. 38, where the bill of lading contained an exemption from responsibility from damage for any act, &e., “in the navigation or management of the ship,” it was held that the improper stowage of oranges by which they suffered damage, was not covered by the term “management of the ship.”
A further reason for excluding the present case from the exemption of the third section of the Harter Act, is found in the express prohibitions of the first section against the insertion of any stipulations in the bill of lading for relieving the vessel or owner from “loss or damage arising from negligence, or failure in proper loading or stowage of all lawful merchandise committed to their charge.” The evident intent is that ship and owner must answer for such damages. The general words of the third section, “management of the vessel,” cannot receive a construction which would contradict the evident and particular intent of the first section. The different parts of the same act must fee construed harmoniously, so far as possible. The scope of a general phrase must be restricted so as not to contradict the more particular provisions of other parts of the same act. And so here, since this damage arose through negligence in the particular mode of stowing and changing the loading of cargo, as the primary cause, though that, cause became operative through its effect on the trim of the ship, this negligence in loading falls within the first section. The ship and owner must therefore answer for this damage, and the third section is inapplicable.
2. It is contended, however, that if the negligence be treated as one of loading and stowage, the express exemptions of the hill of lading apply, and exempt the ship under the stipulation that the English law shall govern, since the English law upholds such exemptions.
In the case of Baetjer v. La Compagnie Generale Transatlantique, 59 Fed. 789, it was considered that such stipulations should he upheld when made within a foreign jurisdiction that sustains them, and when the damage and the cause of action arose within that foreign jurisdiction. In The Trinacria, 42 Fed. 863, however, it was said to he a “wholly different quesf ion whether the courts of this country should sustain contracts or stipulations as regards acts performed and designed to be performed either on the high seas or within the exclusive jurisdiction of this country, when such stipulations are by our law void on the ground of public policy.” In the present case the contract was not made, nor was any part of it intended to be performed, within British jurisdiction. In the absence of any proof of the law either at the port of shipment or at .Para, where this negligence occurred, there is no presumption that the law of either place differs from our own. The damage arose upon the high seas. Foreign law is administered only upon principles of comity. This cannot be allowed to subvert in our courts our own positive law, founded upon public policy, as respects contracts to be performed in part within our jurisdiction and in part upon the high seas.
In this respect the present case is precisely like that of Lewisohn
Decree for the libellant, with reference to compute the damages.